The Fourth Circuit on Civility in Lawyering, and (Indirectly) on Contrition and Loyalty

From a footnote in United States v. Venable (4th Cir. Jan. 18) (paragraph break added):

Finally, we feel compelled to note that advocates, including government lawyers, do themselves a disservice when their briefs contain disrespectful or uncivil language directed against the district court, the reviewing court, opposing counsel, parties, or witnesses. Unfortunately, the government’s brief is replete with such language: it disdains the district court’s “abrupt handling” of Appellant’s first case, Appellee’s Br. 19; sarcastically refers to Appellant’s previous counsel’s “new-found appreciation for defendant’s mental abilities,” Appellee’s Br. 21; criticizes the district court’s “oblique language” on an issue unrelated to this appeal, Appellee’s Br. 22; states that the district court opinion in Jones “revealed a crabby and complaining reaction to Project Exile,” Appellee’s Br. 57; insinuates that the district court’s concerns “require[ ] a belief in the absurd that is similar in kind to embracing paranormal conspiracy theories,” Appellee’s Br. 59; and accuses Appellant of being a “charlatan” and “exploit[ing] his identity as an African–American,” Appellee’s Br. 61.

The government is reminded that such disrespectful and uncivil language will not be tolerated by this court. See Ruston v. Dallas County Tex., 320 Fed.Appx. 262, 263 (5th Cir.2009) (striking pleadings because they “contain abusive and disrespectful language”); Carter v. Daniels, 91 Fed.Appx. 83, 84 (10th Cir.2004) (finding party’s “language in his brief intemperate and disrespectful of this court and the district court,” and cautioning party that it may be subject to sanctions if it continues to file such pleadings); Hamad v. Deshazo, 1996 WL 556788, at *1 (5th Cir.1996)(unpublished) (warning party that “the use of abusive and uncivil language, as displayed in his appellate brief, will not be tolerated by this court” and directing him to “review all pending appeals to make sure that they do not contain such language”).

Two thoughts, on the world as it is and not necessarily on the world as it should be:

1. When and whether courts should impose formal sanctions on lawyers for rudeness is a difficult question. But lawyers should certainly remember that there’s always a less informal, and often subconscious sanction available — if judges are alienated by your tone, they’ll be less likely to rule in your favor.

This footnote is a helpful reminder of that, though of course for every uncivil filing that leads to this sort of public reminder, there are hundreds in which the judges are just annoyed in silence, and in many of those the lawyers (and, regrettably, their clients) suffer as a result.

2. There’s also an interesting side story here. The opinion originally included — not in the footnote but in the attorney list — the name of the Special Assistant United States Attorney who cited the brief, alongside the United States Attorney for the district, who signs all the government’s briefs in that district. This wasn’t done to fault the lawyer; it’s the norm in all cases. Yesterday, the court issued an order deleting the AUSA’s name from that section, prompted by a letter signed with the name of the head USA followed by “By:” and the name of the AUSA who argued the case (not the one who was originally listed as being on the briefs), saying:

I write to apologize for the government’s brief on appeal in United States v. Venable. This Court’s opinion criticized that brief as intemperate in footnote 4. It was not my intention to use invective against anyone or impugn the integrity of the district court. Judge Payne is a highly intelligent, well-regarded, and conscientious judge.

The government’s brief was my own work, and the language that the Court criticized is not the responsibility of [the] Special Assistant United States Attorney [on the case] and now an attorney [in private practice]. Because a reader of the caption to the opinion could draw the conclusion that [the AUSA] was responsible for the government’s brief, I am respectfully requesting that his name be removed from the caption.

I can’t speak to what is the optimal practice for courts in this context. But I can say that, rightly or wrongly, a little contrition can go a long way, and so can a little loyalty to a subordinate (when framed as contrition rather than stonewalling).

UPDATE: I had originally said the letter was from the USA; in response to a helpful comment from “another appellate lawyer,” I’ve corrected this, and added a link to the letter.